Appeal from denial of petition for writ of habeas corpus. Petitioner claims that (1) application of parole guidelines promulgated after offense and sentencing violates Constitutional prohibition against ex post facto laws, and (2) government violated terms of plea agreement.
Feinberg, Chief Judge, Van Graafeiland and Pierce, Circuit Judges.
Vincent DiNapoli appeals from an order of the United States District Court for the District of Connecticut, T.F. Gilroy Daly, Chief Judge, denying his petition for a writ of habeas corpus. DiNapoli is currently serving a five-year term of imprisonment, entered in the United States District Court for the Eastern District of New York after his plea of guilty to one count of racketeering in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c). DiNapoli offers two grounds for granting the writ. First, he claims that the United States Parole Commission violated the Constitution's prohibition against ex post facto laws, U.S. Const. art. I, § 9, cl. 3, by applying parole guidelines that were not in effect at the time of his offense, plea agreement or sentencing. Second, he contends that his plea agreement was violated by the Parole Commission's consideration of certain information in determining how much time he should serve before release. For the reasons stated below, we affirm the judgment of the district court.
In pleading guilty to engaging in a "pattern of racketeering activity" in violation of RICO, DiNapoli had to, and did, admit to committing two predicate offenses, 18 U.S.C. § 1961 (5). The first offense involved actual receipt of approximately $33,000 in return for a promise of "labor peace" at a particular construction site. The second involved an attempt to extort approximately $100,000 in connection with another construction project. The plea agreement entered into by appellant and the government was not reduced to writing. As stated by appellant's counsel at the entry of the plea, the relevant portion of the agreement is as follows:
Mr. DiNapoli voluntarily said, proposed, authorized to offer that he will return the $33,000 which was involved, to the government and that the Government in turn is not going to claim in their communications to the Parole Commission as to the part which deals with the amount involved and it will not claim an amount in excess of $33,000, which Mr. DiNapoli has voluntarily agreed to return.
DiNapoli pled guilty on April 16, 1982 and was sentenced on July 19. Apparently due to illness, he did not begin serving his sentence until March 2, 1983. He received his initial parole hearing before an examiner panel of the Parole Commission on August 23, 1983. In a Notice of Action dated September 20, 1983, the commission concluded that under its existing regulations, 28 C.F.R. § 2.10 et seq. (1983 Guidelines), DiNapoli had an "offense severity rating" of Category Five, id. § 2.20, which, when combined with his "salient factor score" of six, indicated a range of incarceration of 36 to 48 months before parole. Id. ; see Roth v. United States Parole Comm'n, 724 F.2d 836, 837-38 (9th Cir. 1984) (describing operation of Parole Commission). The Commission further concluded that a decision outside the guidelines was not warranted.
In a Notice of Action on Appeal dated March 22, 1984, the National Appeals Board of the Parole Commission affirmed the Commission's earlier decision, stating that "the Commission has maintained the position that the guidelines in effect at the time of the initial hearing are to be utilized." Applying those guidelines, the Board concluded that "your offense severity rating has been correctly rated as Category Five because, as you state, you were convicted under the RICO statute." The Board then went on to note that even under the earlier guidelines "your offense still would have been rated as at least Category Five because it involved receipt or attempted receipt of monies for labor peach exceeding $100,000." Finally, after affirming the calculation of DiNapoli's "salient factor score," the Board stated that "in view of the seriousness of your offense, a more lenient decision [than the indicated 36 to 48 months] is not warranted."
DiNapoli brought this habeas corpus action in the United States District Court for the Eastern District of Pennsylvania, which then transferred the case to the District of Connecticut, the district in which DiNapoli is confined. In an order dated January 25, 1985, Chief Judge T.F. Gilroy Daly denied the petition "[f]or the reasons stated in the government's response." This appeal followed.
The ex post facto clause, U.S. Const. art. I, § 9, cl. 3, forbids the Congress from passing any law "'which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.'" Weaver v. Graham, 450 U.S. 24, 28, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L. Ed. 356 (1867)). The clause serves both to assure that legislative acts give fair warning about new punishments and to discourage arbitrary and oppressive legislation. Weaver, supra, 450 U.S. at 28-29. In accord with these purposes, the Supreme Court has identified
two critical elements [that] must be present for a criminal or penal law to be ex post facto : it must be retrospective, that is, it must apply to events occurring before its enactment, and ...